What is improper use of voice
Not every tenant always uses the rental property as required by law or the rental agreement. Often landlords do not find out about the use of the tenant in violation of the contract for a long time. B. only become aware of a complaint from neighbors about disruptive behavior on the part of the tenant or when viewing the apartment. It is not uncommon for it to come to light when the apartment is handed over at the end of the tenancy that the tenant has exceeded the limits of the contractual use. All situations have one thing in common: the landlord has rights that he should make use of. This article explains what landlords can do if the tenant uses a rental apartment in violation of the contract.
I. Has the rental property been used in violation of the contract?Before the landlord thinks about how to proceed against the tenant because of a (supposedly) non-contractual use of the rented property, he should carefully check whether this is actually the case. Not every behavior of the tenant that does not suit the landlord or that neighbors feel disturbed is automatically in breach of the contract. Use of the rented apartment in violation of the contract is easy to determine if the rental agreement or the law expressly forbids the tenant's behavior. B. applies to an unauthorized sublease. In many cases, however, neither the rental agreement nor a statutory provision deals with certain behavior or usage rights of the tenant. In this case, the rights of use and their limits result from customary practice.
The following Examples are intended to give an overview of when a use contrary to contract a rental apartment is available:
- unauthorized subletting or unauthorized admission of third parties to the apartment,
- unauthorized animal husbandry despite the requirement to obtain a permit (note: keeping small animals is generally permitted without a permit),
- Disturbance of the peace within the rest periods,
- unauthorized use the flat to commercial purposes,
- damage of the rented apartment (Note: not every change or deterioration of the rented property is in breach of contract. Normal wear and tear of the rented apartment, which leads to cosmetic repairs being necessary, does not constitute a breach of contract (see also § 538 BGB). The attachment of dowels is also in Appropriate scope permitted (see BGH, judgment of January 20, 1993 - VIII ZR 10/92)),
- injury the Duty of care (e.g. due to insufficient heating and ventilation),
- (structural) changes the rental property without permission of the landlord.
II. The landlord can demand that his tenant refrain from any use contrary to the contract
If it is certain that the tenant is using the rented apartment in a manner contrary to the contract, the landlord is responsible Injunctive relief against the tenant too. To this claim assert in court to be able to, the landlord must Tenant however before unsuccessfully warned have (for a warning see also the explanations under III.). Section 541 of the German Civil Code stipulates that the landlord can sue for omission if the tenant continues to use the rented property in a manner contrary to the contract despite a warning from the landlord.
III. Warning or setting a deadline - this is how the landlord creates the conditions for his rights
The landlord should not only create the prerequisites for a judicial assertion of the injunction claim, but also to create the prerequisites for a right to extraordinary termination without notice (see the explanations under IV.1) Tenant early to warn or him one reasonable time for the omission his behavior contrary to the contract or to Elimination one in a condition contrary to the contract. In Section 543 (3) of the German Civil Code (BGB), the law also requires the landlord's right to extraordinary termination without notice because of the Breach of rental contract obligationsthat the landlord gives the tenant in front the terminationunsuccessfully warned or him unsuccessful a reasonable time to remedy has set.
For one ordinary termination According to § 573 Paragraph 2 No. 1 BGB (see the explanations under IV.2.), the law requires no unsuccessful warning and also no unsuccessful setting of a deadline (see BGH, judgment of November 28, 2007 - VIII ZR 145/07). A Warning or setting a deadline, however importance win that the Breach of duty of the tenant through the disregard the Warning or the setting of a deadline according to § 573 Paragraph 2 No. 1 of the German Civil Code (BGB) Relevance obtained (see BGH, judgment of November 28, 2007 - VIII ZR 145/07).
With his Warning the landlord must give the tenant condition contrary to contract or be breach of contract exactly to name and him prompt, this turn off (see BGH, judgment of November 18, 1999 - III ZR 168/98). Even if it is in accordance with
Sections 543,569 BGB to be able to terminate without notice, from the prevailing view Not For required it is held that the landlord informs the tenant in his warning or setting a deadline threatens, that he terminate without notice will when the tenant of the Warning does not follow or the The deadline expires (cf. BGH, judgment of June 13, 2007 - VIII ZR 281/06), the landlord is nevertheless entitled guess, the Threatening to resignto the warning or deadline more Emphasis to rent.
The warning or the setting of a deadline is subject to this no formal requirement. Nevertheless, recommends it turns out Evidence, these written to write and the Access verifiable by the tenant to ensure.
In certain cases a Warning or. Setting a deadline is not necessary with the result that the landlord can immediately sue for an omission or (if the conditions are met) terminate the contract without notice. According to Section 543 (3) sentence 2 number 1 and number 2 BGB, this is the case if a Setting a deadline or Warningobviously does not promise success or the immediate termination out special reasons under Consideration the mutual interests justified is. A obvious failure is generally answered in the affirmative if the Tenant yourself seriously and finally refusesto bring about or be conditions in accordance with the contract breach of contract to fail (see BGH, judgment of June 13, 2007 - VIII ZR 281/06). With especially serious breaches of contract can a Warning or. Setting a deadline for special reasons dispensable be if that landlord the continuation of tenancy even after a successful warning or a successful determination of a remedial period Not more reasonable would be (see Bieber, in Munich Commentary on the Civil Code, Section 543 BGB, marginal number 66).
IV. A termination is possible under these conditions
If a warning from the landlord was unsuccessful or a deadline set by the landlord to remedy the condition contrary to the contract has passed without success or if a warning and a deadline were unnecessary, the landlord should consider whether and - if so - at what point in time he would like to end the rental That comes into consideration Termination of the lease both by a extraordinary immediate as well as by a tidy timely Termination.
By a extraordinary termination without notice will that Tenancy immediately with the Access of Letter of termination at the tenant completed, what the advantage has that the Tenant be breach of contract at least after the so-called withdrawal period to which he is entitled has expired Not further continue can. A immediate termination However, the tenancy can also apply to the landlord disadvantageous affect if he's still no new tenant found has and for the time until the new lease no rental income can achieve. Besides, the one is extraordinary termination without notice at stricter requirements bound as that ordinary termination in due timewhere the Tenancy depending on the length of the notice period at the earliest after three months and at the latest after ends nine months.
Under which requirements a use contrary to contract of the rented apartment landlord to a extraordinary termination without notice (see under 1.) or to a ordinary termination in due time (see under 2.) entitled, shall be set out below.
1. Extraordinary termination without notice
a) Existence of an important reason
According to Section 543 (1) sentence 1 of the German Civil Code (BGB), either party can do this Tenancy out terminate without notice for good cause. Such a important reason is in accordance with Section 543, Paragraph 2, Sentence 1, Number 2 of the German Civil Code (BGB) in particular if the Tenant violates the rights of the landlord to a considerable extent by the fact that he has the Rental property by neglecting the due care seriously endangered or you leaves it to a third party without authorization. Section 569 (2) BGB also stipulates that a important reason within the meaning of Section 543 (1) of the German Civil Code (BGB), if one of the contracting parties Sustainably disturbs the peace of the house, so that the terminating party, taking into account all circumstances of the individual case, in particular a fault of the contracting parties, and weighing the interests of both parties, the continuation of tenancy until the end of the notice period or until the other end of the tenancy not expected can be.
To the three Reasons for termination in the Individual:
aa) Considerable endangerment of the rented property through violation of the duty of care
The Tenant applies to the apartment in this respect Due diligencewhen he got the rental property gentle and careful to to treat as everything to fail has what - of the contractual use to which he is entitled (cf. § 538 BGB) not included - deterioration or one damage can lead to this (see BGH, judgment of 14.12.2016 - VIII ZR 49/16). A special form of the duty of care is contained in Section 536c (1) BGB, which obliges the tenant to do so Notify the landlord immediatelyif during the rental period one defect the rental property shows when a measure to the protection the Rental property against an unforeseen danger required and if a third party assumes a right to the rental property.
A breach of this duty of care may well occur once in the course of the lease. So that not every tenant who violates his duty of care immediately has to fear for the existence of his tenancy, § 543 (2) sentence 1 number 2 BGB requires that it be terminated without notice by the neglect the Due diligence to a significant hazard the Rental property comes.
A Danger the Rental property is present when Substance, usefulness, durability or Look the Leased property attacked are or theirs impairment in the ordinary course of things probably is (see Bieber, in Munich Commentary on the Civil Code, Section 543 BGB, marginal number 36). The occurred or threatened damage got to considerably, d. H. of some weight to justify termination without notice (see BGH, decision of July 14, 1993 - VIII ARZ 1/93). Whether this is the case must be determined on a case-by-case basis.
The following Examples should give an overview of when the Jurisprudence the existence of one Right to extraordinary termination without notice because of significant endangerment of the rented property affirmed Has:
- according to a judgment of the LG Berlin dated February 28, 2011 - 67 S 109 / 10- justifies a deposit of rubbish and Junk then termination without notice, if either Co-tenant by Annoyed odors be or the Building fabric (for example due to overloading of the ceilings due to the weight of the bulky waste or because fire protection is no longer guaranteed) specifically endangered is.
- Causes the tenant several significant Water damage in the apartment below him, in the opinion of the AG Görlitz (cf. the judgment of March 28, 1994 4 C 0676/93), this justifies the right to terminate the contract without notice.
- Ventilates the Tenant not enough, the immediate termination of the rental agreement by the landlord is justified if the tenant has a massive formation of mold and moisture in the apartment and thereby endangered and damaged the rental property to a considerable extent (cf. AG Hannover, judgment of August 31, 2005 - 565 C 15388/04).
- Run through a Cat posture caused urgent from a rented apartment Smells to Harassment the other Tenant, then according to a judgment of the LG Berlin from 09/30/1996 - 67 S 46 / 96- a reason for an immediate termination of the lease arises.
- The unauthorized expansion one Attic to Residential purposes justified by the tenant Warning termination without notice (see LG Hamburg, judgment of April 26, 1991 - 311 S 1/91).
- Under what conditions a Overcrowding You can find out about the right to terminate without notice in our article "Overcrowding in an apartment - what can landlords do?".
No was a Reason for termination in the following cases:
- Leads the Tenant those incumbent on him Cosmetic repairs in the apartment in the current tenancy not from, justifies this breach of contract no termination of the tenancy (neither an immediate nor a timely one), as long as the Rental property not endangered (see LG Münster, judgment of October 30, 1990 - 8 S 363/90).
- The Attach one Satellite antenna at the facade of the house justifies the apartment no termination without notice (see LG Berlin, judgment of June 23, 2009 - 63 S 476/08).
- No reason for termination i. S. d. Section 543 (2) sentence 1 number 2 BGB applies if the Tenant at the balcony one Privacy and wind protection and a Attaches insect screen and it through this Not to a Danger the Rental property comes (see AG Munich, final judgment of 14.09.2011 - 413 C 25938/10).
bb) Unauthorized transfer of use
In accordance with Section 543, Paragraph 2, Sentence 1, Number 2 of the German Civil Code (BGB) more important, to the extraordinary without noticeTermination justified even if the tenant violates the rights of the landlord to a considerable extent by the fact that he Rental property unauthorized, so without the required according to § 540 BGB Approval, one Left to third parties. However, not every unauthorized transfer of the rental property to a third party gives the landlord the right to terminate the contract without notice. Rather, it must through the unauthorized transfer of use to a significant injury the right of Landlord come. Whether this is present must be in everyone Individual case by making a case-by-case Balancing of interestsdetected become. If the tenant has sublet his apartment or otherwise given it to a third party without the required permission from the landlord, this entitles the landlord usually then Not to termination without noticewhen the Tenant according to § 553 BGB claim on issuance of the permission (see OLG Dresden, decision of June 30, 2015 - 5 U 375/15). In favor of the landlord, however, the balance falls z. B. from when the Tenant the apartment businesslike as Apartment rented out. In such a case the landlord to the extraordinary Termination without notice (see AG Berlin-Mitte, judgment of July 13, 2009 - 20 C 66/09).
Important: Not every person who is not a tenant is automatically a third party i. S. d. Section 543 (2) sentence 1 number 2 BGB.
Close family members of the tenant to whom
- whose Spouse,
- whose registered life partner i. S. d. LPartG and
- whose children or Stepchildren,
belong (see OLG Hamm, decision of April 11, 1997 - 30 REMiet 1/97), allowed to as well as
- Exchange student and AU Pair girl or au pair boys,
- Domestic servants and
- Nursing staff
(see BGH, judgment of May 15, 1991 - VIII ZR 38/90) without permission of the landlord under the condition in the apartment recorded be that with this one joint household should be led (see LG Cottbus, judgment of 08/30/94 - 4 S 99/94).
cc) Lasting disturbance of domestic peace
Use of the rented property in violation of the contract is also present if the tenant disturbs the peace of the house. In such a case, there is an extraordinary one termination without notice according to Section 569 (2) BGB considering what a important reason within the meaning of Section 543 (1) of the German Civil Code (BGB), in particular, if a Contracting party the Sustainably disturbs the peace of the houseso that the Terminating taking into account all the circumstances of the individual case, in particular if the contractual parties are to blame, and weighing up the interests of both parties continuation of tenancy until the end of the notice period or until the other end of the tenancy not be expected can.
If several (tenant) parties live together in an apartment building, each resident must be considerate of the others and adhere to certain rules that ensure the maintenance of domestic peace and behave when using the leased property in such a way that the other tenants are no longer disturbed than inevitably (see BGH, judgment of February 18, 2015 - VIII ZR 186/14). If this does not happen, there is one Disorder of Trespassing before, the z. B. can be caused by the fact that the tenant
- within the Quiet noise makes,
- unpleasant smells spread or
- offended other residents or physically attacks.
If several people are involved in the tenancy on the tenant's side and the disruption comes from only one tenant, the other tenants must be attributed to the behavior of the disruptive tenant (see LG Karlsruhe, judgment of 30.07.2013 - 9 S 57/13). The notice of termination must be given to all tenants.
In order to justify termination without notice, the Disorder of Trespassing in accordance with Section 569 (2) BGB, however sustainable be. One is sustainable above one Significant impairment over a longer period of time through a serious violation against that bid mutual thoughtfulness (see Häublein, in: in Munich Commentary on the Civil Code, § 569 BGB, marginal number 21). One-time violations can only be sustainable if Risk of repetition consists.
If there is a lasting disturbance of the domestic peace, this only justifies the landlord's right to termination without notice in accordance with Section 569 (2) of the German Civil Code (BGB) if the continuation of tenancy for the landlord unreasonable is. In order to determine this, a comprehensive one is required Balancing of interests. The tenant's interest in the continuation of the contract and the landlord's interest in the immediate termination of the lease are to be compared. The Heaviness, the number and the consequences the Fault (s) a role. It is also necessary to clarify whether and, if so, to what extent the tenant will be involved fault meets.
In the following cases, the Jurisprudence a Law of Landlord to termination without notice because of Disorder of Trespassing according to Section 569 (2) of the German Civil Code (BGB) affirmed:
- The AG Berlin-Tempelhof-Kreuzberg decided in a judgment of 12.09.2014 - 25 C 219 / 13- that an over Months of constant noiseduring the day, but also in the Evening and night hours, sometimes ringing the doorbell at the neighbors, also in the case of a culpable culprit an unreasonable and permanent disturbance of the domestic peace, which for Termination without notice.
- A reason to termination without notice occurs when the Tenant despite warning, consultation and Help the Litter the apartment lets and through the resulting stink Further Users of House when using their apartments in Not in the long run interferes in a reasonable manner (see AG Hamburg-Harburg, judgment of March 18, 2011 - 641 C 363/10).
- The landlord can have a tenancy agreement without notice because of unreasonableness cancelif it's about the mere unauthorized keeping of animals addition through this too strong odor nuisance for the neighbours comes (see LG Berlin, judgment of September 30, 1996 - 67 S 46/96).
- Frequent disturbing noise to Night time justifies a termination without notice by the landlord (see AG Köln, judgment of October 5, 1973 - 152 C 276/73).
b) Unsuccessful warning or deadline
As already under III. stated, the landlord the Tenant - if there is no reason for dispensability - unsuccessfully warned or him without success a reasonable time to Elimination of contrary to the contract or behavior before he can terminate without notice. The requirement of a warning or setting a deadline, which is only contained in Section 543 BGB, also applies if the landlord bases its termination on Section 569 (2) BGB. Termination can only be made without notice if the Warning denoted breach of contract with those to whom the Termination supported becomes, identical or at least similar is. Has the landlord z. If, for example, a warning has been issued due to multiple disturbances of the peace, he may - provided a warning or setting a deadline is not dispensable - not terminate due to unauthorized animal husbandry without having issued a renewed warning for this behavior without success or having set a deadline to omit.
2. Ordinary terminationIf the prerequisites for extraordinary termination without notice are not met or the landlord does not want to terminate without notice, because he z. B. has not yet found a new tenant and would like to avoid a loss of rent, there will also be a ordinary termination in due time in accordance with Section 573, Paragraph 2, Number 1 of the German Civil Code. According to Section 573 (2) No. 1 BGB, the landlord has a legitimate interest in terminating the tenancy that is necessary for proper and timely termination, in particular if the tenant has his or her culpably not insignificantly violated contractual obligations Has. Section 573 (2) number 1 BGB does not require such a serious breach of contract as Sections 543, 569 BGB require for termination without notice. But still she is allowed to Breach of dutyNot just irrelevant be. A general statement as to when this is the case cannot be made. In the classification one Breach of duty as considerably or irrelevant play next to hers Heaviness and yours consequences for landlords and neighbors, especially theirs frequency and the question of whether Risk of repetition exists (see LG Wuppertal, judgment of October 29, 1991 - 16 S 189/91).
It can also be an in itself first insignificant breach of duty - as already under III. set out- by the disregard one (generally not required for ordinary termination) Warning in a transform significant breach of duty (see BGH, judgment of November 28, 2007 -VIII ZR 145/07).
A not insignificant breach of duty by the tenant alone does not entitle the landlord to ordinary termination. Section 573 (2) number 1 BGB also requires that the Tenant culpable, i.e. willful or negligent acted Has. The fault one Vicarious agents must he according to § 278 BGB to be attributed (see BGH, judgment of 25 October 2006 - VIII ZR 102/06). Likewise to stand up has the Tenant according to § 540 Paragraph 2 BGB for one culpable use contrary to the contract the rental property through a personwho he the flat to the Leave to use has, so z. B. a subtenant.
Note: If the tenant wrongly assumes that his behavior is in accordance with the contract, this so-called legal error only eliminates the fault if the error was unavoidable.
The following Examples should give an impression of the cases in which the Jurisprudence a Law of the landlord ordinary termination because of use contrary to the contract the rental property affirmed Has:
- Has the tenant in spite of different Warning items in the Stairwell turned off, justifies in the opinion of the Regional Court Cologne, judgment of 02.12.2016 - 10 S 99 / 16- a ordinary termination of the tenancy.
- That - including the holidays and weekends - daily, Exercise for more than 2 hours of Piano playing and singing by a music student entitled the landlord to ordinary termination (see LG Düsseldorf, judgment of July 18, 1989 24 S 597/88).
- The damage one Apartment entrance door through the unapprovedInstallation one Cat flap represents a significant breach of contract represent that to ordinary timely Termination entitled (see LG Berlin, judgment of 24.09.2004 - 63 S 199/04).
- The ordinarytermination of the rental contract is due to a not inconsiderable breach of contract justifiedwhen the Tenant despite warning those according to the lease illegal animal husbandry continues (see LG Hildesheim, decision of 02/28/2006 - 7 S 4/06).
- A legitimate interest of Landlord to ordinary termination of a residential tenancy is given if the Tenant of two adjacent apartments, the one between the two apartments wall of the house without the prior consent of the landlord breaks throughin order to establish a connection between the two apartments in this way (cf. LG Berlin, judgment of September 17, 1987 61 S 50/87).
Unlike in the case of an extraordinary termination without notice according to §§ 543,569 BGB, the Tenant, which is properly terminated in accordance with § 573 BGB, in accordance with § 574 BGB Right to object to that give him a claim on (temporarily) continuation of tenancy lends when the completion of tenancy for the tenant, his family or another member of his household hardness would mean that also taking into account the legitimate interests of the landlord is unjustifiable. All important information about the tenant's right of objection
Section 574 of the German Civil Code (BGB) is particularly available in our article "Termination for personal use: If the tenant is in hardship (hardship clause)".
The tenant's right of objection does not exist in accordance with Section 574 (1) sentence 2 of the German Civil Code (BGB) if there is a reason that entitles the landlord to extraordinary termination without notice due to a breach of contract. If the landlord has properly terminated the contract, but would have been entitled to extraordinary termination without notice in accordance with Section 543 (2) number 2 BGB or in accordance with Section 569 (2) BGB, the tenant cannot invoke a case of hardship due to a lack of need for protection.
3. Time of termination and letter of termination
The landlord would like extraordinarily without notice cancel, he should note that one termination out important reasonwhich is based on the fact that one party has the continuation of Lease no longer reasonable can only be explained if the termination as timely response on the grounds for termination (see LG Berlin, judgment of 07.05.1999 64 S 524/98). According to the judgment of the LG Berlin from 07.05. 1999 64 S 524 / 98-, if the termination of the tenancy is declared around four months after the breach of contract. The landlord should deal with the termination without notice therefore don't give too much time. If a warning is required, the period between gaining knowledge of the reason for termination and the warning, as well as the period between the warning and the renewed violation, as well as between the renewed misconduct and the statement of termination without notice, must not be too long (see LG Halle , Judgment of 11.01.2002 - 1 S 192/01). There are no generally applicable upper time limits. Section 314 (3) of the German Civil Code (BGB), which states that the termination of a continuing obligation for an important reason, is only possible within a reasonable period after the terminating party has become aware of the reason for the termination, does not apply to Sections 543, 569 BGB (cf. . BGH, default judgment of July 13, 2016 - VIII ZR 296/15).
Even if that Law for immediate termination does not require the explicit determination of the unreasonableness of the continuation of the contract, as z. B. is the case with Section 543 (2) number 2 BGB, it can through to long waiting forfeited (see BGH, default judgment of July 13, 2016 - VIII ZR 296/15).
Both the tidy timely as well as the extraordinary termination without notice have to written take place (see Section 568 (1) BGB) and justified (see Section 573 (3) BGB and 569 (4) BGB). The landlord should provide the justification very carefully. A missing or insufficient justification leads to Ineffectiveness of termination (see BT-Drs. 14/4553 p. 66), even if all the conditions for termination are actually met.
It is important to note that it is not sufficient for a justification that meets the requirements of Section 569 (4) BGB or for a reason that meets the requirements of Section 573 (3) BGB that the landlord states abstractly and generally that the termination is due to a "Not insignificant breach of duty", because of a "considerable risk to the rental property due to a breach of duty of care", because of "unauthorized transfer of the rental property to a third party" or because of a "lasting disruption of domestic peace". Rather, what is needed is the description one specific factsfrom which the right of termination arises.
Opinions differ as to how detailed the reasons are to be given. To be on the safe side, the landlord should wrongdoing of the tenant or the condition contrary to contract and its Describe the consequences as detailed as possible, if possible with an indication of date, Time and possibly also that place the Breaches of duty. This applies all the more if there are several incidents that are not yet in themselves, but justify a right of termination due to their frequency. In this case, all breaches of duty must be specified in detail in the notice of termination so that the tenant can see what he is being accused of and whether he can successfully defend himself against this accusation (see LG Berlin, judgment of 10.02.2003 - 67 p 240/02).
Is the termination a Warning preceded, so it must emerge from the Letter of termination also reveal which Breaches of contract the tenant to the access of the Warning committed (see LG Bonn, judgment of 02.09.1991 - 6 S 167/91).
The landlord supports his termination without notice on Section 569 (2) BGB, he also needs those Specify circumstanceswithin the framework of the Balancing of interests speak for the fact that the continuation of tenancy for him unreasonable is. Even in the case of a ordinary termination is important, if possible all circumstances explain what makes up the interest of the landlord at the completion of tenancy results. If the tenant objects in accordance with Section 574 of the German Civil Code (BGB) because of hardship, in accordance with Section 574 (3) of the German Civil Code (BGB), when assessing the legitimate interests of the landlord within the framework of the weighing of interests, only the reasons given in the letter of termination are taken into account, unless the Reasons arose retrospectively.
V. Under these circumstances, the landlord is entitled to a claim for damages
Is the landlord through the use of the rental apartment contrary to the contract damage arisen, he can according to § 280 paragraph 1 BGB from his Tenant request replacementif this is his To represent breach of duty has, i.e.either acted intentionally or negligently (see Section 276 BGB) or culpable behavior on the part of a vicarious agent (see Section 278 BGB) or a third party to whom he has left the apartment for use (see Section 540 (2) BGB), must be attributed.
A recoverable damage is not only present if the tenant has the Rental property damaged Has. Even if the tenant's behavior contrary to the contract, e.g. disruptive behavior, has resulted in a other tenant towards the landlord Rent reduced the landlord can use the resulting damage grds. request replacement.
Does the landlord effective for its tenant due to the use of the rental object contrary to the contract terminated, he also has one claim on replacement of the so-called Consequential damage caused by termination. In this case, the injured landlord is basically to be placed as he would if the breach of contract did not occur and the contract was therefore not terminated, but the contract would have been continued (see Blank, in: Schmidt - Futterer, Mietrecht, § 542 BGB, Marginal 102).
A more typicalConsequential damage caused by termination is the Loss of rentthat arises for the landlord by the fact that he Do not sublet the apartment immediately can. In such a case, the landlord is generally entitled to compensation in the amount of the rent that the tenant would have had to pay up to the point in time at which he could have terminated the tenancy himself for the first time or, in the case of a limited tenancy, until the expiry of the Time limit (see BGH, judgment of February 16, 2005 - XII ZR 162/01). However, it has to landlord in view of his incumbent upon him according to § 254 BGB Duty to mitigate damage therefore strive, the damage if possible low to hold. However, this does not result in the obligation to rent out immediately at any price and, if necessary, under unfavorable conditions (see BGH, judgment of February 16, 2005 - XII ZR 162/01). The landlord who terminates without notice does not violate his obligation to reduce the consequential damage caused by the termination if he does not offer the rooms at the rent owed under the terminated lease, but at a higher rent in line with the market (see KG, judgment of 04.05.2009 - 8 U 183 / 08). He also does not have to accept any person as a tenant (cf. KG, judgment of 04.05.2009 - 8 U 183/08). The Burden of proof for one violation of the landlord against his Duty to mitigate damage carries the Tenant (see BGH, judgment of February 16, 2005 - XII ZR 162/01).
In the case of a justified termination of the lease due to a breach of contract by the tenant, a private landlord who neither employs legally qualified staff nor has any special legal knowledge in the relevant area has a Claim for damages against the tenant for compensation for the termination Legal fees (cf. LG Heidelberg, judgment of February 29, 2008 - 5 S 79/07), but only in the amount of the statutory fees set by the Lawyers' Remuneration Act.
Provided that these were necessary, the landlord can also Advertising costs and Brokerage fees demand for replacement that arose in connection with the new letting of the apartment (cf. Blank, in: Schmidt-Futterer, Mietrecht, § 542 BGB, marginal number 113).
VI. Conclusion and summary
1. If a rental apartment is being used in violation of the contract, the landlord can demand that the tenant cease to use it in violation of the contract.
2. If the tenant continues to use the rented property in violation of the contract despite a warning from the landlord, the landlord can sue for an omission.
3. An extraordinary termination without notice is possible in particular if the tenant
- violates the rights of the landlord to a considerable extent by neglecting the due care and diligence of the rental property,
- violates the rights of the landlord to a considerable extent in that he leaves the rented property to a third party without authorization or
- permanently disturbs the peace of the house, so that the landlord, taking into account all the circumstances of the individual case, in particular if the contractual parties are to blame, and taking into account the interests of both parties, cannot be expected to continue the lease until the period of notice has expired or until the lease is otherwise terminated.
4. The right of the landlord to extraordinary termination without notice generally requires that the landlord has unsuccessfully warned the tenant or has given him a reasonable deadline to remedy the situation.
5. The landlord is entitled to terminate the contract properly and in due time if the use contrary to the contract constitutes a not only insignificant breach of duty and the tenant has acted culpably or if a third party is responsible for culpable behavior.
6. Both the ordinary and timely termination as well as the extraordinary termination without notice must be given in writing and be justified. This requires a description of a specific situation from which the right of termination results.
7. If the landlord has suffered damage as a result of the use of the rented apartment in violation of the contract, he can demand compensation from his tenant if he has acted culpably or if the culpable behavior of a third party can be attributed to him.
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